1

IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC15-650

DCA NO.: 4D12-3525

DALE NORMAN,Petitioner,

-vs-

STATE OF FLORIDA,Respondent.

PETITIONER’S INITIAL BRIEF ON THE MERITS

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICTCOURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

FLETCHER & PHILLIPS /s/ Eric J. Friday Eric J. FridayFla. Bar No.: 797901541 E. Monroe St.Jacksonville FL 32202Phone: 904-353-7733

Counsel for Petitioner

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CITATIONS TO THE RECORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. The right to keep and bear arms, including firearms, is an

enumerated, fundamental individual right and any restriction on

that right must meet strict scrutiny. . . . . . . . . . . . . . . . . . . . . . . . 15

A. The right to keep and bear arms is a fundamental right under

the United States Constitution and the Florida Constitution.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The State has conceded that the right to carry outside the home

3

is fundamental. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Binding precedent and stare decisis require this Court to

employ strict scrutiny when analyzing the Open Carry Ban’s

infringement on the enumerated and fundamental right to bear

arms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. Restricting an individual’s right to bear arms until they obtain a

license violates the right to substantive due process by denying a

fundamental right pending and conditioned on the State’s

approval in the form of a license . . . . . . . . . . . . . . . . . . . . . . . . . . 23

A. Bearing of concealed firearms under the Second Amendment is

universally recognized as a privilege. . . . . . . . . . . . . . . . . . . 24

B. Because there is a fundamental right to bear arms for purposes

of self-defense outside the home, and concealed carry is merely

a privilege, there must be some method of exercising the right.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

C. The legislature must allow for the exercise of the right to bear

arms without prior restraint. . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. Florida’s terms of licensing are too restrictive to stand as

a valid alternative to the exercise of a right and constitute

4

an undue burden on the exercise of that right. . . . . . . . 32

2. The State may license or ban concealed carry, but not

open carry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

III. The Open Carry Ban violates both the Second Amendment to the

United States Constitution and Art. I, Sec. 8, Declaration of

Rights of the Florida Constitution. . . . . . . . . . . . . . . . . . . . . . . . 35

A. The burden of proof is on the state to produce evidence and

prove of the efficacy of the statute. . . . . . . . . . . . . . . . . . . . . 35

B. Legislative Deference is judicial abdication, prohibited by

binding precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

C. The District Court decision in Heller III, relied upon by the

Court below, has been expressly overturned. . . . . . . . . . . . . 40

D. 790.053 sweeps too broadly and should be found to be unconstitutional.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

1. There is no basis for restricting licensees from open

carry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Florida’s statutory scheme related to the open carry of

firearms is unconstitutional. . . . . . . . . . . . . . . . . . . . . . 43

3. Inclusion of long guns within the Open Carry Ban means

5

that the right to bear all arms in common use is

prohibited without a license. . . . . . . . . . . . . . . . . . . . . 46

IV. Open Carry is the traditional and long recognized method of

exercising the right to bear arms. . . . . . . . . . . . . . . . . . . . . . . . . . 46

IV. The exceptions to the prohibition against open carry contained in

Sec. 790.25, Fla. Stat., should be treated as an element of the

crime of open carry rather than an affirmative defense based on

the supremacy provision of Sec. 790.25. . . . . . . . . . . . . . . . . . . . . 54

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

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TABLE OF AUTHORITIES

Bliss v. Commonwealth, 12 Ky. 90 (Ky. 1822); . . . . . . . . . . . . . . . . . . . . . . . 19, 31

Brown v. City of Vero Beach, 64 So. 3d 172 (Fla. 4th DCA 2011). . . . . . . . 53, 54

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Crane v. Dep’t of State, Div. Of Licensing, 547 So. 2d 266 (Fla. 3d DCA 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19, 22

Davis v. State, 146 So. 2d 892 (Fla. 1962) . . . . . . . . . . . . . . . . . . 23, 35, 37, 38, 46

District of Columbia v. Heller, 554 U.S. 570 (2008). . 9-11, 15, 23, 24, 28, 29, 39,40, 46, 50

Dorelus v. State, 747 So. 2d 368 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Fla. Retail Fed'n, Inc. v. AG of Fla., 576 F. Supp. 2d 1281 (N.D. Fla. 2008) . . . 16

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11 Cir. 2012) . . . . . . . . . .th 13

Heller v. Dist. of Columbia, 2015 U.S. App. LEXIS 16632 (D.C. Cir. Sept. 18,2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Heller v. District of Columbia, 45 F. Supp. 3d 35 (D.D.C. 2014). . . . . . . . . 32, 34

Hillsborough County Gov’t. Employees Ass’n v. Hillsborough County AviationAuth., 522 So.2d 358 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Jackson v. City & County of San Francisco, 135 S. Ct. 2799 (2015) . . . . . . . . . 28

7

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) 19, 21, 25, 30, 36

Mackey v. State, 124 So. 3d 176 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Mackey v. State, 83 So.2d 942 (Fla. 3d DCA 2012) . . . . . . . . . . . . . . . . . . . . 19, 49

McDonald v. City of Chicago, 130 S. Ct. at 3042 . . . . . . . . . . . . 10, 14, 18, 23, 26

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Norman v. State, 159 So. 3d 205 (Fla. 4 DCA 2015). . .th 9, 11, 12, 14, 15, 30, 32-34

Nunn v. State, 1 Ga. 243 (Ga. 1846) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

Peoples v. State, 287 So. 2d 63 (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Peruta v. County of San Diego, 742 F.3d 1144 (9 Cir 2014) . . . . . . . . . . .th 28, 32

Peterson v. Martinez, 2013 U.S. App. LEXIS 3776 (10 Cir. 2013) . . . . . . . . . .th 19

Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Robertson v. Baldwin, 165 U.S. 275 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

State v. Chandler, 5 La. Ann. 489 (La. 1850) . . . . . . . . . . . . . . . . . . . . . . . . 12, 24

State v. Comeau, 448 N.W.2d 595 (Neb. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . 16

State v. Dennis, 684 So. 2d 848 (Fla. 3d DCA 1996) . . . . . . . . . . . . . . . . . . . . . 26

State v. Hamdan, 665 N.W. 2d 785 (Wis. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 23

State v. Huntley, 25 N.C. 418 (N.C. 1843) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

State v. J.P., 907 So.2d 1101 (Fla. 2004) . . . . . . . . . . . . . 12-14, 16, 26, 33, 35, 36

State v. Kelly, 999 So. 2d 1029 (Fla. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

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State v. O'Daniels, 911 So. 2d 247 (Fla. 3d DCA 2005) . . . . . . . . . . . . . . . . . . . 26

State v. Reid, 1 Ala. 612 (Ala. 1840). . . . . . . . . . 11, 12, 14, 18, 20, 21, 24, 25, 27

State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973). . . . . . . . . . . . . . . . . . . . . . 44

Sutton v. State, 12 Fla. 135 (Fla. 1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 44

Sutton v. State, 327 So. 2d 234 (Fla. 1 DCA 1976) . . . . . . . . . . . . . . . . . . . . . . .st 46

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) . . . . . . . . . . . . . . . . . . . . . 33

United States v. Chovan, 735 F.3d 1127 (9 Cir. 2013) . . . . . . . . . . . . . . . . . . . .th 15

United States v. O'Brien, 391 U.S. 367 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Washington v. Glucksberg, 521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . 18, 26

Watson v. Stone, 4 So. 2d 700 (Fla. 1941). . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46

Williams v. Pryor, 240 F.3d 944 (11 Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . .th 16

Woollard v. Gallagher, 2013 U.S. App. LEXIS 5617 (4 Cir. 2013) . . . . . . . . .th 19

Sec. 790.053, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sec. 790.06, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Sec. 790.25, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Preamble, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 25, 28

Alexander v. State, 450 So. 2d 1212 (Fla. 4 DCA 1984) . . . . . .th 29, 41, 43, 44, 52

Carrying Concealed Weapons in Self Defense: Florida Adopts UniformRegulation the Issuance of Concealed Weapons Permits, FSU Law Rev.,

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Comment, 15 (1987):751. . . . . . . . . . . . . . . . . 15-17, 21, 29, 30, 34, 35, 45, 46, 52

Dr. Anthony Pinizzotto, et al., Violent Encounters: A Study of Felonious Assaultson Our Nation's Law Enforcement Officers, FBI (2006). . . . . . . . . . . . . . . . . . . 53

Dred Scott v. Sandford, 60 U.S. 393, 417 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ensor v. State, 403 So. 2d 349 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Fla. Const. Art. 1, Sec. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Fla. Dep’t of Agriculture and Consumer Servs., Div. Of Licensing, ConcealedWeapon or Firearm License, Summary Report October 1, 1987-September 30,2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40

http://www.nytimes.com/interactive/2011/02/20/nyregion/20-Owners.html?ref=nyregion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Kachalsky v. Cacace, (U.S. Supreme Court No. 12-845) BRIEF OF THECOMMONWEALTH OF VIRGINIA AND THE STATES OF . . ., FLORIDA, . . .AS AMICI CURIAE IN SUPPORT OF PETITIONERS. . . . . . . . . . . . . . . . . . . 57

N. Johnson et al., Firearms Law and the Second Amendment 101-09 (2011) . . 34

The Right To Keep And Bear Arms, Report of the Subcommittee on theConstitution, Committee on the Judiciary, U.S. Senate, 97th Cong., 2d Sess. 3(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27

U.S. Const. Amend. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

V St. George Tucker, Blackstone's Commentaries App. 19 (1803) . . . . . . . . 25, 55

CITATIONS TO THE RECORDCitations to the record will be in the form (Vol. __, R. __).

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STATEMENT OF CASE

This case was heard as a second degree misdemeanor on a one count

information alleging violation of Sec. 790.053, Fla. Stat., the Florida Open Carry

Ban (hereinafter, “the Open Carry Ban”), in St. Lucie County Florida, before the

Honorable Clifford Barnes, County Court Judge. Trial was held on June 8, 2012.

During the preparation of the jury instructions an objection was made by the

Defendant as to whether the relevant provisions of Sec. 790.25, Fla. Stat., were

elements of the crime, or were affirmative defenses to the crime alleged. (Vol. III,

R. 312).

Motions to dismiss raising a variety of constitutional and statutory

interpretation grounds were filed. (Vol. I, R. 79-103). The trial court reserved

ruling on the motions to dismiss and the case proceeded to a jury trial. (Vol. III, R.

224). The jury returned a verdict of guilty. (Vol. IV, R. 403).

After the jury returned a guilty verdict, the parties presented additional

argument on the motions to dismiss at a separate hearing. The trial judge denied

all of the motions to dismiss, (Vol. I, R. 116-117), and certified three questions of

great public importance to the Fourth DCA. (Vol. I, R. 116-117). The Defendant

appealed the trial court’s decision to the Fourth DCA.

In its opinion the Fourth DCA made several holdings. First, it held that

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there is a right to carry firearms outside the home for purposes of self-defense.

Second, it held that because the U.S. Supreme Court recognized concealed carry

restrictions were presumptively lawful, by logical extension so were limitations on

open carry. Third, it found that the language of Art. I, Sec. 8, Fla. Const., allowing

the Legislature to regulate the manner of bearing arms allowed for the Open Carry

Ban. Fourth, it found that the ban on open carry was not unconstitutional because

a Concealed Weapon Firearms License was obtainable without undue burden, and

was issued as a matter of right, notwithstanding the decision of the Third DCA in

Crane v. Dep’t of State, Div. Of Licensing, 547 So. 2d 266 (Fla. 3d DCA 1989).

Finally the court below found that the State could limit the right to bear arms to a

license allowing concealed carry only.

STATEMENT OF FACTS

This case began on February 19, 2012. Dale Norman a young man with no

criminal record, who had just received his concealed weapon firearm license that

day, left his home exercising his constitutional right to bear arms (Vol. I, R. 3). A

concerned citizen noticed Mr. Norman’s firearm on his right hip and called police.

Two Fort Pierce Police Department marked squad cars driving from opposite

directions aggressively approached Mr. Norman. Both officers jumped from their

vehicles, drew their weapons, and made Mr. Norman lie on the ground, treating

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him as a felon rather than a citizen exercising a constitutional right to bear arms.

(Vol. 3, R. 239, Video of arrest, enclosed with record and admitted as States

Exhibit 1).

At all times Mr. Norman cooperated and followed police directions. He

informed the officers that he had a concealed carry permit. Mr. Norman was a

generally law abiding gun owner who had, at worst, committed a non-violent

second degree misdemeanor and who was posing no threat to the community.

Despite this fact, Mr. Norman was arrested rather than being issued a notice to

appear. (Video of arrest, States Exhibit 1).

It is important to note that Mr. Norman was never charged with illegally

possessing a weapon or firearm, or committing any violent crime with a weapon or

firearm. The State’s sole allegation in this case is that Mr. Norman carried a

firearm conspicuously and openly rather than concealed. (Vol. I, R. 1).

SUMMARY OF ARGUMENT

Florida’s ban on the open carrying of firearms, is unconstitutional under the

Second Amendment to the United States Constitution as well as Article I, Sec. 8 of

the Florida Constitution, Declaration of Rights. The current ban was passed as an

ill-conceived emergency measure, without committee hearings, public comment,

or time for deliberations.

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Mr. Norman raises five main arguments on appeal. First, the right at issue is

a fundamental right that required the lower court to use strict scrutiny.

Second, limiting the right to bear arms to a licensed privilege violates

substantiative due process.

Third, the Open Carry Ban is unconstitutional because as a fundamental

right, any restriction on the right requires a compelling governmental interest, a

narrowly tailored method of achieving that interest, and proof that the interest

asserted is achieved by the method chosen. The statute at issue is also over broad,

and sweeps within its definition people who the Legislature has deemed qualified

to be armed in public through its licensing scheme, just as long as they do not let

anyone see they are armed.

Fourth, Open Carry has long been recognized as the right protected by the

Second Amendment. While the right of Floridians to keep and bear arms has also

long been recognized, so have attempts to prevent certain classes from being

armed. The suspect history of Florida’s licensing of the right to carry makes any

regulation of the right especially suspect. These regulations were well recognized

as applying only to certain races. The suspect regulations, in addition to having a

questionable history, as drafted, also infringe on the fundamental individual rights

of citizens to bear arms in defense of themselves, their families, and the State.

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Fifth, the lower court’s determination that the provisions of Sec. 790.25 are

merely affirmative defenses rather than elements the State must prove in order to

convict someone for violation of Sec. 790.053 is in error. The trial court’s

interpretation, fails to give effect to the plain language of the statutes at issue as

well as the legislative intent. It also subjects law abiding citizens to arrest,

detention, trial, and untold expense for engaging in lawful, constitutionally

protected, and legislatively recognized activities.

ARGUMENT

Standard of Review

Interpretation of a statute is a legal issue involving the interpretation and

application of statutory language and is therefore subject to a de novo review.

Brown v. City of Vero Beach, 64 So. 3d 172, 174 (Fla. 4th DCA 2011). All issues

on appeal involve the interpretation of a statute, and the constitutionality of that

statute. There are no factual issues before the Court.

Argument

The Open Carry Ban severely restricts the right to bear arms. It denies the

right to carry a handgun by limiting the bearing of such arms to the exercise of a

mere privilege. The ban ignores substantial Florida precedent as well as holdings

of the U.S. Supreme Court. It also bans the carrying of long guns anywhere in the

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state of Florida, thereby burdening an entire class of arms that are in common use.

This is a case of first impression regarding the constitutionality of the Open Carry

Ban.

I. The right to keep and bear arms, including firearms, is an enumerated,fundamental individual right and any restriction on that right mustmeet strict scrutiny.

The opinion below begins a free-wheeling analysis, claiming that "general

regulations of activity within the scope of the Second Amendment are

constitutional if they are (1) reasonable; and (2) do not effectively destroy the right

in practice by imposing a substantial limitation on its exercise." Norman v. State,

159 So. 3d 205, 213 (Fla. 4 DCA 2015). This is precisely the type of interestth

balancing that the United States Supreme Court rejected in Heller I:

We know of no other enumerated constitutional right whose coreprotection has been subjected to a freestanding "interest-balancing"approach. The very enumeration of the right takes out of the hands ofgovernment-even the Third Branch of Government-the power todecide on a case-by-case basis whether the right is really worthinsisting upon. A constitutional guarantee subject to future judges'assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they wereunderstood to have when the people adopted them, whether or notfuture legislatures or (yes) even future judges think that scope toobroad.

District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008)(Heller I).

“That the free white men of this State shall have the right to keep and to1

bear arms, for their common defense.” Fla. Const. 1838, Article I Declaration ofRights, Sec. 21; and Ordinance of Secession, 1861 Declaration of Rights Sec. 21. “The people shall have the right to bear arms in defense of themselves and of the

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A. The right to keep and bear arms is a fundamental right under theUnited States Constitution and the Florida Constitution.

The right to keep and bear arms is an enumerated right under both the

United States Constitution and the Florida Constitution and has been held as a

fundamental right by the U.S. Supreme Court. U.S. Const. Amend. II; Fla. Const.

Art. 1, Sec. 8(a); District of Columbia v. Heller, 554 U.S. at 602; McDonald v.

City of Chicago, 130 S. Ct. at 3042. Both the United States Constitution, in the

Second Amendment, and the Florida Constitution, in Art. I, Sec. 8, of the

Declaration of Rights, guarantee the right of the people to keep and bear arms.

The Florida Constitution makes clear that this right is not granted by the

Constitution, but is an endowed right pre-dating its enumeration. Preamble, Fla.

Const. and Heller I, at 592(finding that the Second Amendment, like the First and

Fourth Amendment recognizes a pre-existing right that is not dependant on the

Constitution for its existence). The right to keep and bear arms, has been included

in every version of the Florida Constitution, with the exception of the 1865

military government constitution immediately following the war between the

states. A privilege which may be taken away on legislative whim, is no right.1

lawful authority of the State.” Fla. Const. 1868, Declaration of Rights, Sec. 22. “The right of the people to bear arms in defense of themselves and the lawfulauthority of the State, shall not be infringed, but the Legislature may prescribe themanner in which they may be borne. Fla. Const. 1885, Declaration of Rights Sec.20.

17

State v. Reid, 1 Ala. 612 (Ala. 1840).

The enumerated right to keep and bear arms has been interpreted by the U.S.

Supreme Courts as the fundamental individual right to keep and bear arms for the

purpose of self-defense. Heller I at 602. Article 1, Section 8 of the Florida

Constitution explicitly states: “The right of the people to keep and bear arms in

defense of themselves and of the lawful authority of the state shall not be

infringed, except that the manner of bearing arms may be regulated by law.” Fla.

Const. Art. I, Sec. 8. This enumerated right of the people to keep and bear arms is

only subject to regulation regarding the manner of bearing arms; it does not permit

the infringement of the right to bear arms by a total ban on the right. See, Heller I,

554 U.S. at 647.

Art. I, Sec. 8, Fla. Const., is not limited to a militia purpose, nor does it

require historical analysis to know that it is to protect the right of self-defense,

among other rights. Norman v. State, 159 So. 3d 205, 214 (Fla. 4 DCA 2015).th

The purposes for which arms are necessary are clearly stated within its language.

Norman at 214. The opinions in Heller and McDonald are the floor of application

Despite its recognition that Heller I leads to the inescapable conclusion that2

the Second Amendment protects the right to bear arms outside the home, the lowercourt misleadingly claims in n. 17 that the “nineteenth-century cases” cited byHeller I, stand for the proposition that “certain modes of public carry can beprohibited when other modes are allowed.” In reality, every one of these casesheld that there was a right to open carry a firearm in those cases. Specificallythose cases either ruled that open carry was the right, or that the state could notjustify a ban on open carry by the granting of a licensed privilege. Bliss v.Commonwealth, 12 Ky. 90 (Ky. 1822); State v. Reid, 1 Ala. 612 (Ala. 1840); Nunnv. State, 1 Ga. 243 (Ga. 1846)(court struck down prohibition on open carry andupheld prohibition on concealed carry); State v. Chandler, 5 La. Ann. 489 (La.1850).

18

of gun rights to the citizens of Florida, not the ceiling. State v. J.P., 907 So.2d

1101, 1115 (Fla. 2004), and State v. Kelly, 999 So. 2d 1029, 1041 (Fla.

2008)(noting that Florida law or interpretation of rights may be broader than

federal court interpretation).

B. The State has conceded that the right to carry outside the home isfundamental.

The court below ruled that there is a right to bear arms outside one’s home.

Norman at 225. This is a point that the State conceded below at oral argument,2

agreeing that it was a fundamental right, but claiming it is subject to the licensing

requirement. The State also conceded this point in an amicus brief to the U.S.

Supreme Court stating:

Consequently, [the U.S. Supreme Court] should . . . make clear thatthe lower courts are not free “to repudiate the Court’s historicalanalysis,”Moore, 702 F.3d at 935, and to confirm the import of its

19

citations in Heller to Nunn and Andrews that broad-brush restrictionson law-abiding citizens carrying handguns in public, whether open orconcealed, premised on the view that the public is better off if citizensdo not exercise their rights, run afoul of the “right of the people to . . .bear arms.” Heller, 554 U.S. at 629; see Nunn v. State, 1 Ga. 243, 251(1846); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 187 (1871). Itshould make plain that the Second Amendment took New York’s“policy choice[ ] off the table.” Heller, 554 U.S. at 636.

See generally, Kachalsky v. County of Westchester, 2013 U.S. LEXIS 3132 (2013)

denial of petition for certiorari, Brief of the Commonwealth of Virginia, et. al

(including Florida), as amicus curie in support of certiorari. (Hereinafter,

“Kachalsky Brief”).

C. Binding precedent and stare decisis require this Court to employstrict scrutiny when analyzing the Open Carry Ban’sinfringement on the enumerated and fundamental right to beararms.

While the federal courts continue to struggle with the appropriate level of

scrutiny in right to bear arms cases, and the U.S. Supreme Court and the Eleventh

Circuit have yet to provide a definitive answer, State v. Kelly, at 1041, see also

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1261 n.34 (11 Cir. 2012),th

this Court has been more than clear. J.P. at 1109-10. When laws criminalize

constitutionally protected activities with broad and sweeping infringements on

The U.S. Supreme Court has rejected relegation of the right to bear arms to3

a second class right which may be singled out for “specially unfavorabletreatment.” McDonald at 745-46.

20

fundamental rights, “strict scrutiny is the law of this state. J.P. at 1109. “A3

statute which, under the pretense of regulating, amounts to a destruction of the

right, . . . would be clearly unconstitutional. State v. Reid, 1 Ala. 612 (1840).

This Court’s decisions require that when a law burdens the exercise of a

fundamental constitutional right, clearly expressed in the Florida Declaration of

Rights or the federal constitution, the only applicable standard is strict scrutiny.

State v. J.P., at 1109-10 and F.3 (Fla. 2004)(noting that regardless of federal

precedent, Florida courts should always use strict scrutiny when dealing with a

fundamental enumerated right, and listing numerous citations addressing a variety

of rights, and consistently holding that a review of a fundamental right under

Florida law requires that restrictions on fundamental rights withstand strict

scrutiny to survive challenge) and Hillsborough County Gov’t. Employees Ass’n v.

Hillsborough County Aviation Auth., 522 So.2d 358 (Fla. 1988). The court below

improperly relied on federal precedent rather than the binding precedent of this

Court and failed to conduct a strict scrutiny analysis. Norman at 220. The court

below even claimed that because the right to bear arms outside the home was a

right and not a mere privilege, that it was “thus subject to reasonable restrictions.”

21

Id. at 212, F.3. Reasonable restrictions are the very antithesis of a strict scrutiny

analysis. This court has made no distinction between the fundamental rights in the

Declaration of Rights and has never analyzed a fundamental right on a

reasonableness basis. Id. and Hillsborough County Gov’t. Employees Ass’n v.

Hillsborough County Aviation Auth., 522 so.2d 358 (Fla. 1988).

When placed alongside the J.P. and Hillsborough County Aviation Auth.

cases, the decision below claiming to use intermediate scrutiny (but really

applying a rational basis or interest balancing test) means that the right of

juveniles to stay out late or the right of a public employee to join a union, are

superior to and more protected than the right to bear arms. As required by the

decision in Heller I, the rational basis test has been rejected by almost every court

that has considered the right to bear arms. Heller I at 629 F.27(“If all that was

required to overcome the right to keep and bear arms was a rational basis, the

Second Amendment would be redundant with the separate constitutional

prohibitions on irrational laws, and would have no effect.”).

The two part Chovan analysis utilized below to determine the appropriate

level of scrutiny, is a recent development of lower courts opposed to the U.S.

Supreme Court’s decisions in Heller I and McDonald. See, United States v.

Chovan, 735 F.3d 1127 (9 Cir. 2013). Chovan is not binding on this Court, andth

22

should be ignored by this Court especially in light of this Court’s repeated

holdings requiring strict scrutiny in the case of fundamental rights. J.P. at 1110, n.

3. In J.P. this Court discussed at length the need for stability in the law and the

importance of stare decisis in regards to the use of strict scrutiny as the only

applicable standard under Florida law when reviewing infringements on

fundamental rights. J.P. at 1109. The Fourth DCA’s decision to rely on the

Chovan test violates the binding precedent of this Court.

Strict scrutiny is a two prong test looking first at what the compelling

governmental interest is; and second, whether the law in question has been

narrowly tailored to achieve the compelling governmental interest. Fla. Retail

Fed'n, Inc. v. AG of Fla., 576 F. Supp. 2d 1281, 1288 (N.D. Fla. 2008)(quoting

Williams v. Pryor, 240 F.3d 944, 947-48 (11 Cir. 2001).) th

There is no legitimate argument that a complete ban on open carry of

firearms is necessary to achieve a compelling governmental interest. Furthermore,

even a compelling “governmental purpose in regulating the right to bear arms

cannot be pursued by means that broadly stifle the exercise of this right where the

governmental purpose can be more narrowly achieved.” State v. Comeau, 448

N.W.2d 595, 598 (Neb. 1989) and J.P. at 1117(stating that the constitutionality of

the ordinance at issue hinged upon the “nexus between the asserted interests and

Mr. Norman made no challenge below to Florida's current terms of4

qualification for licensure to carry a concealed weapon or firearm or those placeswhere carry is currently prohibited for licensees as the issue was not implicated bythe procedural posture of the case in the lower court. Mr. Norman only challengedthe requirement that a firearm may only be carried concealed. However, in light ofthe lower court's opinion that the privilege of a license adequately protects afundamental enumerated right, it became necessary for Mr. Norman to address therequirement of a license and the terms of licensure before this Court.

23

the means chosen, and whether this is the least restrictive alternative to achieve the

goals.”

II. Restricting an individual’s right to bear arms until they obtain a licenseviolates the right to substantive due process by denying a fundamentalright pending and conditioned on the State’s approval in the form of alicense.4

The Fourth DCA’s decision upholding the Open Carry Ban violates

Norman’s substantive due process rights. The lower court's theory is that if the

State allows a peripheral, not historically recognized right (concealed carry), then

it can restrict a core, historically recognized right (open carry). By analogy, as

long as the state allows free access to pornography (a right not historically

protected under the First Amendment), it can ban free speech in public parks and

sidewalks (a right that is so protected). Or if the state were to provide free

contraceptives, it can ban abortions. Just stating such an argument is sufficient to

refute it. Until now, no court has ever adopted such a theory. See, e.g., City of

24

Boerne v. Flores, 521 U.S. 507, 519 (1997) ("Congress does not enforce a

constitutional right by changing what the right is.").

The right to keep and bear arms is a “substantive guarantee[s], not a

prohibition that [can] be ignored so long as [Florida legislates] in an evenhanded

manner.” McDonald v. City of Chicago, 561 U.S. 742, 745-746 (U.S. 2010).

While Florida generally issues CWFLs "in an evenhanded manner," the

requirement of a license violates the substantive right to bear arms. Id., .and

Washington v. Glucksberg.

The Due Process Clause guarantees more than fair process, and the"liberty" it protects includes more than the absence of physicalrestraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) (DueProcess Clause "protects individual liberty against `certaingovernment actions regardless of the fairness of the procedures usedto implement them' ").

Washington v. Glucksberg, 521 U.S. 702 (1997). Because the State prohibits the

right to bear arms until one endures a lengthy process (up to 90 days by law, and

sometimes more in practice), the regulatory scheme violates substantive due

process. McDonald at 780; see State v. Reid, 1 Ala. 612 (1840).

A. Bearing of concealed firearms under the Second Amendment is

universally recognized as a privilege.

As the U.S. Supreme Court made clear in Heller I and McDonald, the

carrying of concealed firearms has long been recognized as being outside the

25

protection of the Second Amendment. See also, Sutton v. State, 12 Fla. 135, 136

(Fla. 1868). Every court that has considered the issue since Heller I and

McDonald has confirmed the fact that the carrying of concealed firearms is a

privilege, not a right. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Woollard

v. Gallagher, 2013 U.S. App. LEXIS 5617 (4 Cir. 2013)(assuming that the rightth

extends outside the home but upholding restrictions on the issuance of concealed

carry permit); Kachalsky v. County of Westchester, 701 F.3d 81, 87 (2d Cir.

2012)(finding no right to carry outside the home) Peterson v. Martinez, 2013 U.S.

App. LEXIS 3776 (10 Cir. 2013)(upholding CO state statute preventing out ofth

state resident from obtaining a concealed carry permit, a privilege, in an open

carry state).

The Third DCA recognized that a concealed weapon firearm license

(“CWFL”), and therefore the ability to lawfully carry a concealed firearm, was a

privilege even before Heller and McDonald. Crane at 267. Some Florida courts,

as well as the Attorney General of Florida have even gone so far as to say that a

person with a concealed weapon is a criminal and that the possession of a CWFL

is only an affirmative defense. Mackey v. State, 83 So.2d 942 (Fla. 3d DCA

2012)(Cert. granted by Fla. Supreme Ct., oral arguments before the Fla. Supreme

This Court’s opinion in Mackey v. State, 124 So. 3d 176 (Fla. 2013),5

conclusively shows that concealed carry is not a right, and is not theConstitutionally protected bearing of arms referenced in either the United States orFlorida Constitution. The idea that the exercise of a right can subject one todetention and arrest, subject merely to an affirmative defense, is the veryantitheses of a right. See also J.P. at 1111 (Fla. 2004)(citing Hodgkins v.Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004) for the premise that evenaffirmative defenses to allow protected First Amendment activity is not narrowlytailored and fails to allow for alternative channels of expression)

In 2015 the Legislature amended Sec. 790.01 converting the possession of6

a CWFL from an affirmative defense to an element of the crime by rewording thestatute.

26

Ct. 4-10-13). Under such a reading of the law, even a person lawfully carrying a5

concealed firearm, is subject to arrest and must affirmatively show to a court, after

the fact, that they had a CWFL.6

The Court below reasoned that because of what it determined to be the

relative ease of obtaining a CWFL in Florida, the license was actually a right and

an adequate alternative for exercising the right to bear arms. Ignoring for the

moment the level of restrictions placed on the exercise of the right to bear arms by

Florida’s licensing scheme, the Attorney General has recognized the danger of

limiting a right to a privilege. (Kachalsky Brief) accord, State v. Reid, 1 Ala. 612

(Ala. 1840). Kachalsky was a challenge to New York’s permit requirements and

issuance process, not a challenge to the statute banning open carry. But as the

court there noted, licensing officials are given a lot of discretion, meaning, ‘we can

27

keep guns from the undesirables that we do not trust, just as we used to prohibit

the right to vote from people we did not like.’ Kachalsky v. County of

Westchester, 701 F.3d 81 (2d Cir. 2012).

The most telling fact regarding the permits at issue in Kachalsky is who did

get them. As with Florida’s history of gun regulation, the law at issue in

Kachalsky only applied to the commoners. Robert DeNiro, City Council

members, Harvey Keitel, Donald Trump, the chairman of the Nassau County

Republican party, and Howard Stern, were all allowed to have permits for their

guns. McGinty, New York Times, Feb. 18, 2011,

http://www.nytimes.com/interactive/2011/02/20/nyregion/20-Owners.html?ref=ny

region (Last visited Oct. 29, 2015). Mr. Kachalsky and a Coastguardsman were

not, because they could not show a good enough reason to satisfy a bureaucrat

with unfettered discretion. Allowing the right in Florida to remain as a privilege

means that Florida is only ever one election away from denying this most

fundamental right. See, State v. Reid, 1 Ala. 612 (Ala. 1840).

B. Because there is a fundamental right to bear arms for purposes ofself-defense outside the home, and concealed carry is merely aprivilege, there must be some method of exercising the right.

The state cannot ban open carry. It is the core of the right to bear arms. If

one accepts that there is a right to bear arms, and every court to consider the issue

28

has ruled that concealed carry is a privilege, there is only one manner in which

firearms can be borne in the exercise of the right, open carry.

Currently, Florida common law recognizes the ownership of firearms to be a

right but the bearing of arms to be a privilege in most cases. Crane v. Dep’t of

State, Div. Of Licensing, 547 So. 2d 266, 267 (Fla. 3d DCA 1989)(holding that a

license holder has no property right in the issuance of a CWFL). The Third DCA

based its rationale on two Supreme Court of Florida opinions regarding liquor and

business licenses. Id. (citing Holloway v. Schott, 64 So. 2d 680, 681 (holding that

a liquor license was a privilege); and Mayo v. Market Fruit Co. of Sanford, Inc.,

40 So. 2d 555, 559 (finding that a license to do business is a privilege, not a

property right, nor a contract, nor does it create a vested right). While the Third

DCA was correct in holding that a CWFL is a privilege and not a right, the bearing

of a firearm is a right.

The privilege of concealed carry is distinguishable from the constitutionally

enumerated rights of ownership and possession of firearms under both the Second

Amendment of the United States Constitution, and Article 1, Section 8 of the

Florida Constitution. The Florida Constitution explicitly states: “The right of the

people to keep and bear arms in defense of themselves and of the lawful authority

of the state shall not be infringed, except that the manner of bearing arms may be

29

regulated by law.” Fla. Const. Art. I, Sec. 8(a). The enumerated rights of the

Second Amendment and Article I, Section 8(a) are analogous to application of the

rights guaranteed under the First Amendment of the United States Constitution.

See McDonald, 130 S. Ct. at 3047 (rejecting any argument that the Second

Amendment is unique among the first eight amendments).

Regulations that limit the constitutional rights to keep and bear arms must

leave some realistic alternative means to exercise the right.” State v. Hamdan, 665

N.W. 2d 785 (Wis. 2003). Crane shows that the granting of a mere privilege does

not sufficiently protect the right. The allowance of a privilege by the Legislature is

no substitute for a fundamental right, which according to Heller I, was a

recognized right pre-dating the U.S. Constitution. Heller I at 592. The current ban

on open carry also prevents the bearing of an entire class of arms, all long guns

and shotguns. Pursuant to this Court’s decision in Davis v. State, such a broad ban

must necessarily fail. Davis v. State, 146 So. 2d 892 (Fla. 1962). The current ban

in no way satisfies any compelling governmental interest.

In rejecting the District of Columbia's argument that the Second

Amendment provided only a collective right connected to militia service, Heller I

relied on at least two 19th-century state supreme court cases interpreting the

Second Amendment as protecting an individual right to carry weapons openly (but

“It interfered with no man's right to carry arms "in full open view," which7

places men upon an equality. This is the right guaranteed by the Constitution ofthe United States, and which is calculated to incite men to a manly and nobledefence of themselves, if necessary, and of their country, without any tendency tosecret advantages and unmanly assassinations [by the concealment of arms].”

The Attorney General has previously argued that the U.S. Supreme Court8

should, “confirm the import of its citations in Heller to Nunn and Andrews.”(Kachalsky Brief).

30

not concealed) in public. More specifically, Heller I cited approvingly to Nunn v.

State, 1 Ga. 243 (1846), in which "the Georgia Supreme Court construed the

Second Amendment as protecting the `natural right of self-defence' and therefore

struck down a ban on carrying pistols openly." Heller I, 128 S. Ct. at 2809

(quoting Nunn, 1 Ga. at 251). The Heller I majority described Nunn as "perfectly

captur[ing] the way in which the operative clause of the Second Amendment

furthers" the Amendment's purpose. Id. Similarly, Heller I's dicta also cited with

approval State v. Chandler, 5 La. Ann. 489 (1850), in which "the Louisiana

Supreme Court held that citizens had a right to carry arms openly" under the

Second Amendment. Heller, 128 S. Ct. at 2809 (citing Chandler, 5 La. Ann. at7

490); See also, State v. Reid, 1 Ala. 612 (1840).8

The first and most effective method of self-defense is deterrence. Carrying

a concealed firearm presents to the would-be criminal that a person is unarmed and

therefore an easier target for aggression. The requirement that arms be concealed

31

removes all deterrent value that person is bearing arms and therefore likely to able

to effectively defend themselves and those around them. In the absence of a

uniformed, openly armed law enforcement officer only the passive thought that

there is a small possibility that anyone may be secretly armed remains to deter

aggression. The requirement that handguns may only be carried concealed

destroys all but the most fleeting thought of consequence to serve as a deterrent to

criminal attack. Reid at 619(holding that only openly carried arms are efficient for

defense).

The Attorney General of Florida has even recognized that “broad-brush

restrictions on law abiding citizens carrying handguns in public, whether open or

concealed, run afoul of the right of the people to . . . bear arms”. Internal quotes

omitted. Kachalsky v. County of Westchester, 2013 U.S. LEXIS 3132 (2013)

denial of petition for certiorari, Kachalsky Brief.

C. The legislature must allow for the exercise of the right to beararms without prior restraint.

The history and text of the right to bear arms in both the United States

and Florida constitutions leaves room for constitutionally permissible regulation.

It does not allow the State to violate citizens’ due process rights by converting the

right to a privilege, and simultaneously, denying the exercise of both the right and

32

any alternate privilege to all citizens, until they have obtained the State’s

permission by obtaining a license. McDonald at 780 (“It cannot be doubted that

the right to bear arms was regarded as a substantive guarantee, not a prohibition

that could be ignored so long as the States legislated in an evenhanded manner.”)

and J.P. at 1123(“In determining the scope of a fundamental right, we should

remember the general principle that "[b]y extending constitutional protection to an

asserted right or liberty interest, we, to a great extent, place the matter outside the

arena of public debate and legislative action.") citing Glucksberg, 521 U.S. at 720.

While self-defense is the reason for the right to bear arms, the right is not

limited by that reason, just as First Amendment claims are not limited to situations

where the speech actually contributed to reason behind that right: political

discourse. See, e.g., State v. O'Daniels, 911 So. 2d 247, 249 (Fla. 3d DCA 2005)

(playing guitar on a public street); State v. Dennis, 684 So. 2d 848, 849 (Fla. 3d

DCA 1996) (yelling "99" when the police arrived). The constitution places the

power to speak and use force in the people as a whole rather than the government.

If citizens misuse that speech or force, they are answerable at law afterwards, but

they cannot be subject to either prior restraint or anticipatory disarmament.

1. Florida’s terms of licensing are too restrictive to stand as avalid alternative to the exercise of a right and constitute anundue burden on the exercise of that right.

33

Florida’s licensing regime is not an adequate alternative to protect

and preserve the fundamental, individual right to bear arms outside the home. No

other right requires that an individual obtain training, submit to both

photographing and fingerprinting, complete an application, and have a background

check run, all at a costs of $200 or more, to exercise their right in the most basic

way. If all of these restrictions are not burdensome enough, the right is denied

without due process until these conditions are met. This is exactly the scenario

struck down by the Alabama Supreme Court. Reid, 1 Ala. 612 (Ala. 1840).

The State may argue that the requirement to obtain a CWFL is no different

than requiring one register to vote. There are fundamental differences between the

requirements to obtain the CWFL required by the State to exercise the right to bear

arms and any the restrictions to exercise any other right.

The right to bear arms in Florida is the only enumerated right that may be

denied for ninety days or more. It is the only right that requires an individual to

appear in person for fingerprinting. It is the only right that requires a person to be

background checked. It is the only right that requires nearly $200.00 in state fees

and costs to exercise. It is the only right that a person must offer proof that they

have met the standards of a third party before being allowed to exercise the right.

Sec. 790.06, Fla. Stat.

34

2. The State may license or ban concealed carry, but not opencarry.

Since the U.S. Supreme Court’s decision in Heller I, many lower

courts, both federal and state, have attempted to justify restrictions on the Second

Amendment by reference to what is likely the most quoted provision of Heller I,

“nothing in our opinion should be taken to cast doubt on longstanding prohibitions

. . .”. Heller I at 626. Many of these attempted justifications have ignored the

reasoning and rationale behind Heller and McDonald. Peruta v. County of San

Diego, 742 F.3d 1144, 1155-1167 (9 Cir 2014) vacated by, rehearing en bancth

granted by, Peruta v. County of San Diego, 2015 U.S. App. LEXIS 4941 (9th Cir.,

Mar. 26, 2015)(pending review)(discussing at 1167 the failure of lower courts to

acknowledge the analysis and rationale in Heller I); see also, Jackson v. City &

County of San Francisco, 135 S. Ct. 2799, 2801 (2015)(denial of certiorari,

Thomas, joined by Scalia, author of Heller I, dissenting):

Heller and McDonald leave little doubt that courts are to assess gunbans and regulations based on text, history, and tradition, not by abalancing test . . . But nothing in our decision in Heller suggested thata law must rise to the level of the absolute prohibition at issue in thatcase to constitute a “substantial burden” on the core of the SecondAmendment right. . . The court below twisted the preceding sentence in Heller I reasoning that

because the U.S. Supreme Court said that “the majority of the 19th-century courts

35

to consider the question held that prohibitions on carrying concealed weapons

were lawful under the Second Amendment or state analogues” there was no reason

to prohibit the State here from banning open carry. See, Heller I at 626 .

The Fourth DCA read for the conclusion it wanted, not what the cases cited

by Heller I actually stood for. The reality, is that while Heller I explicitly

approved of severe regulations on certain classes of persons and places of carry, as

well as long-standing historical prohibitions on concealed carry, not once does

Heller I or McDonald offer any support or justification, or cite any precedential

cases for the premise that open carry may be limited and regulated as strictly as

concealed carry.

III. The Open Carry Ban violates both the Second Amendment to theUnited States Constitution and Art. I, Sec. 8, Declaration of Rights ofthe Florida Constitution.

In Heller I, the U.S. Supreme Court analyzed the Second Amendment of the

United States Constitution and held that the District’s total ban of a class of arms

in common use for lawful purposes would not pass constitutional muster under

any level of scrutiny. Heller I at 647.

A. The burden of proof is on the state to produce evidence and proveof the efficacy of the statute.

Whether under strict or intermediate scrutiny it is the State’s burden to

36

produce evidence to show that the means chosen achieve the State’s interest. No

such showing was made in either the trial court or the Fourth DCA. This is not a

question of whether sufficient evidence was produced; there was no evidence

produced. Norman v. State, at 223 n. 14 (Fla. 4 DCA 2015). The State did notth

attempt to offer any evidence at trial, and could not offer a cogent argument to the

Fourth DCA when asked how the Open Carry Ban achieved any public safety

interest. Despite the complete lack of evidence to support the position, and no

argument for doing so, the Fourth DCA reasoned that because the Legislature

banned open carry, the court there should defer to the unsupported and unstated

legislative judgment, that there was evidence that banning open carry would

enhance public safety. This is directly contrary to Heller I, which suggest that the

founders believed carrying firearms increased, not decreased, public safety. See,

Heller I at 593-94. This is consistent with both Article I, Sec. 8, (“in defense of

themselves and of the lawful authority of the state”) and the Second Amendment

(the right to bear arms is “necessary to the security of a free state”).

The founders understood that carrying firearms for self-defense was the key

to public safety. The state's asserted "public safety" interest in prohibiting the

open carrying of firearm is therefore invalid. The government cannot assert an

interest contrary to the Constitution. For instance, the purported governmental

37

interest in a free speech context must be "unrelated to the suppression of free

expression." United States v. O'Brien, 391 U.S. 367, 377 (1968). The government

cannot assert an interest in "making sure people receive only true information" to

justify a suppression of free speech. The Constitution has decided that truth is

best achieved when the people are individually able to speak and decide for

themselves. Here, the Constitution has decided that public safety is best achieved

when the people are armed and able to defend themselves. The government is not

free to dispute the values established in its own founding constitution.

The State Attorney at trial made the most honest argument in explaining and

justifying this statute, “some people might be, uh, might be a little timid around

[people with guns].” (Vol. IV, R. 373). If discomfort is a justification for

abridgement of a right, then the First Amendment is in jeopardy as well.

The State’s own data shows that those who lawfully carry concealed

firearms are generally among the most law abiding and responsible demographic

for which there are statistics. Fla. Dep’t of Agriculture and Consumer Servs., Div.

Of Licensing, Concealed Weapon or Firearm License, Summary Report October

1, 1987-September 30, 2015, available at

http://www.freshfromflorida.com/content/download/7499/118851/cw_monthly.pd

f (Last Visited 10/16/15). As of January 2011, of the over 2.4 million Concealed

38

Carry Licenses that Florida had issued since the statewide program’s inception in

1987, only 168 hade been revoked for the subsequent commission of a crime

involving a firearm. Id. A number so statistically insignificant that the Department

of Agriculture no longer tracks that data point. Despite this fact, the State impairs

the fundamental right to bear arms by completely eviscerating the right, and only

allowing citizens to carry concealed one type of firearm (handguns) as the exercise

of a privilege, not a right.

B. Legislative Deference is judicial abdication, prohibited by bindingprecedent.

The court below relied on the decision of the District court in Heller III to

hold that the legislative determination to ban open carry in the interest of public

safety was entitled to deference. Heller v. District of Columbia, 45 F. Supp. 3d 35

(D.D.C. 2014) reversed by Heller v. Dist. of Columbia, 2015 U.S. App. LEXIS

16632 (D.C. Cir. Sept. 18, 2015)(Heller III). The Fourth DCA concluded that it

should defer to the Legislature’s decision to ban open carry. Norman v. State at

223 The court did acknowledge that its brand of judicial deference was not

universally accepted, noting, “[b]ut see Peruta, 742 F.3d at 1176-77 (stating that

"when assessing 'the fit between the asserted interests and the means chosen to

advance them,'" a court should apply "no such deference" (quoting Turner Broad.

Sys., Inc. v. FCC, 520 U.S. 180, 213, 117 S. Ct. 1174, 137 L. Ed. 2d 369

39

(1997)))”(Peruta has been vacated pending en banc review.) In reaching its

conclusion the court cited Sec. 790.25, Fla. Stat., which preexisted the Open Carry

Ban. When enacting the Open Carry Ban in 1987, the Legislature made no finding

that public safety was enhanced by banning open carry There is no legislative

history or other evidence to support such a conclusion. No committee hearings

were held and no opportunity for public comment was held in the enactment of the

Open Carry Ban.

The policy contained in Sec. 790.25, Fla. Stat., does not save the violation

of constitutional rights contained in Sec. 790.053. There is no basis on which the

court below can justify a statute by reference to another statute in a different

section passed over two decades before. See Norman at 214. (4 DCA 2015). th

In reality, the court below abdicated its duty to ensure that legislative

enactments infringing upon the right to bear arms were sufficiently supported by

an evidentiary basis. Instead the Fourth DCA concluded that because evidence

was hard to come by, the State was excused from having to present any evidence

or justification supporting the Legislature’s policy decision. This type of analysis

and tautology has been foreclosed by the U.S. Supreme Court. See, Turner Broad.

Sys., Inc. v. FCC, 520 U.S. 180 (1997). The decision in Turner Broad. Sys., Inc.,

is binding precedent on this Court, unlike the decision of the D.C. District Court in

40

Heller III, which is not binding on this Court. See also, State v. J.P., 907 So.2d

1101 (Fla. 2004)(noting this Court’s fidelity to the doctrine of stare decisis).

C. The District Court decision in Heller III, relied upon by the Courtbelow, has been expressly overturned.

The decision relied upon by the court below to justify its unsupported

deference to the Legislature has been overtured by the D.C. Circuit Court of

Appeals. Specifically, the D.C. Circuit held that the complete lack of any

evidence or insufficient evidence to support certain regulations, required those

regulations to be found unconstitutional. Heller v. Dist. of Columbia, 2015 U.S.

App. LEXIS 16632, 20 (D.C. Cir. Sept. 18, 2015)(“the asserted interest in police

protection ‘leaves far too many false negatives to satisfy ... intermediate scrutiny’."

citing, Heller v. Dist. of Columbia, 670 F.3d 1244, 1295 (D.C. Cir. 2011)

(Kavanaugh, J., dissenting).

D. 790.053 sweeps too broadly and should be found to beunconstitutional.

Whether under strict or intermediate scrutiny the law at issue has to

be related to the interest the government seeks to advance. In the case of the Open

Carry Ban, the Fourth DCA acknowledged that the interest the government seeks

to advance is a general interest in public safety. Norman at 222-223. There is no

more particularized interest asserted in the limited legislative record, the State’s

41

briefs below, or anywhere else in the record.

With such a broad compelling interest, the question becomes whether the

Open Carry Ban actually accomplishes the Legislature’s goal in enhancing public

safety. J.P. at 1117(“It must demonstrate that the recited harms are real . . . and

that the regulation will in fact alleviate these harms in a direct and material way”).

Again, without any evidence there was no basis for the court below to determine

that the regulation was either narrowly tailored or substantially related to the

State’s goal, or actually accomplished the State’s post hoc stated goal. Instead the

State’s chosen means of regulation includes not only “the unskilled, the

irresponsible, and the lawless,” but the most law abiding identifiable segment of

Florida’s population. See, Davis v. State, at 893-94 (Fla. 1962). Additionally, the

statute bans the carry of an entire class of arms. The concealed carry license only

allows for the carrying of handguns. There is no way to carry a long-arm, such as

a rifle or shotgun, except under the very limited provisions of Sec. 790.25.

1. There is no basis for restricting licensees from open carry.

The Open Carry Ban generally prohibits the carry of firearms that are

unconcealed even for those people to whom the state has issued a license to carry

a concealed weapon or firearm. Because Mr. Norman and others like him have

already submitted to the state’s fingerprinting, background check, and proof of

42

safe handling requirements, there can be no claim that the Open Carry Ban is

solely to satisfy the Davis factors. Rather, as shown by its history, it was ill

advised, legislation in haste, to prevent imagined evils of allowing openly carried

firearms into places where they could not be taken concealed.

The State has not and cannot argue that Mr. Norman was unqualified to

possess a firearm, or that he possessed it unlawfully. The State of Florida has

already agreed that Norman can carry a firearm in public lawfully, as long as it is

concealed. It has offered no justification for the concealed requirement. To

restrict those that the state has authorized to exercise the privilege of concealed

carry, from exercising the right to open carry, is the very definition of overly broad

restriction that sweeps much farther than necessary to enhance public safety. See,

J.P. at 1117. Even a person who has met all of the conditions to carry a concealed

firearm, and has obtained a license issued by the authority of the Legislature

through the Dept. of Agriculture and Consumer Services is still denied the right to

carry their firearm openly.

Not only did the State fail to present any evidence as to how the Open Carry

Ban achieves any of the State’s claimed public safety interest, it also failed to offer

any evidence why a person who has been determined responsible enough to bear

arms outside the home, must keep their firearm concealed. Nor did the State

Norman does not concede that the State can restrict the right to bear arms to9

the exercise of a licensed privilege. As applied to himself and other licensees witha CWFL however, the law is an unconstitutional infringement on persons theLegislature has deemed competent and responsible enough to bear arms in public.

43

explain or offer evidence as to how requiring licensed persons, who are legally

allowed to bear arms as a privilege in Florida, to keep their firearms concealed is

necessary to achieve the goal of public safety. While the lower court excused the

State from its burden on the ground that evidence was hard to come by, the

undisputed fact that 45 other states allow for open carry belies the claim that no

evidence is available. The truth is that even with 45 states worth of research, there

is no evidence to support the State’s position.

This Court has interpreted the final clause of Art. I, Sec. 8 to mean that the

Legislature’s constitutional authority to regulate the manner of bearing arms is

limited to preventing the “bearing of weapons by the unskilled, the irresponsible,

and the lawless.” Davis v. State, 146 So. 2d 892, 893-94 (Fla. 1962). Arguably,

the Legislature has done so by the enactment of 790.06, Fla. Stat.9

2. Florida’s statutory scheme related to the open carry offirearms is unconstitutional.

The first question certified by the trial court to the DCA was “is Florida's

statutory scheme related to the open carry of firearms constitutional?” Despite the

44

present Open Carry Ban, the Florida Legislature and this Court have long

recognized the preexisting fundamental rights to keep and bear arms. The

Legislature expressly required that its licensing scheme, which the court below

used to limit the right to bear arms, shall not be construed to “impair or diminish

such rights.” It requires that its terms be “liberally construed” and that it is

“supplemental and additional to existing rights” to bear arms. Sec. 790.06 (15),

Fla. Stat.

This Court has explained the meaning of Art. I, § 8 as follows: [D]oubtless the guarantee [‘The right of the people to bear arms in defenseof themselves, and the lawful authority of the State, shall not be infringed’]was intended to secure to the people the right to carry weapons for theirprotection while the proviso [‘but the Legislature may prescribe the mannerin which they may be borne.’] was designed to protect the people also fromthe bearing of weapons by the unskilled, the irresponsible, and the lawless.

Davis v. State, 146 So. 2d at 893-94.

The Open Carry Ban goes far beyond a regulation on the manner of bearing

arms and was in no way calculated to prevent the bearing of weapons by unskilled,

irresponsible, and lawless people; it completely bans the bearing of arms

regardless of time, place, manner or circumstance except for some narrow

exceptions. Id.

A 2006 FBI study establishes that criminals do not open carry. See Dr.

Anthony Pinizzotto, et al., Violent Encounters: A Study of Felonious Assaults on

45

Our Nation's Law Enforcement Officers, FBI (2006) (finding that violent criminals

carefully "conceal" their guns and "eschew holsters"). Summary available at:

http://www.forcesciencenews.com/home/detail.html?serial=62. This Court has

held that the Legislature may only limit possession and/or concealed carry of

firearms not commonly used for lawful purposes such as self-defense. A statute

must “not prohibit the ownership, custody and possession of weapons not

concealed upon the person, which ... are commonly kept and used by law-abiding

people for hunting purposes or for the protection of their persons and property,

such as semi-automatic shotguns, semi-automatic pistols and rifles.” Rinzler v.

Carson, 262 So. 2d 661 (Fla. 1972).

The decision below notwithstanding, there is no method of bearing arms in

Florida as a matter of right. Absent the narrow exceptions within Sec. 790.25,

Florida’s ban on open carry prohibits the bearing of any arm in common use,

unless a citizen possess a CWFL. Because the narrow exceptions in Sec. 790.25

have a very limited applicability, the Florida ban on bearing arms is as complete as

the District of Columbia’s ban on keeping arms that was struck down in Heller I.

See, Heller I.

46

3. Inclusion of long guns within the Open Carry Ban meansthat the right to bear all arms in common use is prohibitedwithout a license.

In Heller I, D.C. attempted to argue that a ban on handguns was permissible

because long guns were not banned. The U.S. Supreme Court explicitly declined

to accept that reasoning. Heller I at 629. The counter argument attempted by the

court below is no better. Allowing citizens to bear arms by carrying handguns,

whether as a privilege or a right, does not save the statute’s impermissible

prohibition against the bearing of any long gun. Sec. 790.06 limits concealed

carry to only handguns, except in the limited circumstances set forth in Sec.

790.25.

IV. Open Carry is the traditional and long recognized method of exercisingthe right to bear arms.

From the time of settlement of the United States through its creation and

acknowledgment of the preexisting right to bear arms, the peaceable carry of arms

was not only allowed but was often required by law. All of the early cases cited in

Heller I, McDonald, and in this case supported open carry not concealed carry.

For example:

In 1623, Virginia forbade its colonists to travel unless they were "wellarmed"; in 1631 it required colonists to engage in target practice onSunday and to "bring their peeces to church." In 1658 it requiredevery householder to have a functioning firearm within his house andin 1673 its law provided that a citizen who claimed he was too poor

47

to purchase a firearm would have one purchased for him by thegovernment, which would then require him to pay a reasonable pricewhen able to do so.

The Right To Keep And Bear Arms, Report of the Subcommittee on the

Constitution, Committee on the Judiciary, U.S. Senate, 97th Cong., 2d Sess. 3

(1982) (citations omitted). See also, N. Johnson et al., Firearms Law and the

Second Amendment 101-09 (2011) (all colonies except Pennsylvania had some

form of arms mandate). Of the only six states prior to the 1860s which had

statutes restricting the public carrying of arms, none prohibited the lawful and

peaceful open carry of arms, only doing so in a manner to terrorize the people,

citizens or country.

In one of the few early cases regarding the right to bear arms where a law

restricting the right was upheld the Court was clear that it was not the mere fact of

carrying a firearm stating:

the carrying of a gun, per se, constitutes no offence. For any lawfulpurpose—either of business or amusement—the citizen is at perfectliberty to carry his gun. It is the wicked purpose, and the mischievousresult, which essentially constitute the crime. He shall not carry aboutthis or any other weapon of death to terrify and alarm, and in suchmanner as naturally will terrify and alarm a peaceful people.

State v. Huntley, 25 N.C. 418, 422-23 (N.C. 1843). In the first 25 years of the

Republic, no state had a concealed or Open Carry Ban. Prior to the

48

Mexican-American war, only eight states restricted concealed carry in any way,

and all of them permitted open carry of pistols, rifles, and shotguns.

The very first mention of the right to bear arms by the U.S. Supreme Court

is also instructive. There the Court noted that "the right of the people to keep and

bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed

weapons." Robertson v. Baldwin, 165 U.S. 275 (1897). Once again, the U.S.

Supreme Court recognized that while there was a right to bear arms, it did not

include the right to bear them concealed. Since the U.S. Supreme Court

recognized there was a right to bear arms but that the bearing of concealed arms

was outside the protection of the right, the only logical conclusion is that the Court

recognized the right to bear arms as the right to carry them unconcealed, or

openly.

In the Kachalsky case the court listed a few states from the late nineteenth

century that enacted bans on concealed carry. None of those states however,

banned the carry of all firearms and in some cases case law explicitly recognized

the right to open carry. The American tradition of open carry is further shown by

the leading legal scholar at the time of our founding. St. George Tucker noted in

his commentary:

In many parts of the United States, a man no more thinks, of goingout of his house on any occasion, without his rifle or musket in his

49

hand, than an European fine gentleman without his sword by his side.

V St. George Tucker, Blackstone's Commentaries App. 19 (1803). Importantly in

this case he was discussing the carrying of long guns, not handguns, which are

completely prohibited by the statute at issue here. In fact the first four Presidents

openly carried firearms.

Heller I made clear that the proper standard for review of the right to bear

arms was the period following the ratification of the Second Amendment. Even

approximately one hundred years after its enactment only two of the top one

hundred most populous cities in 1880 had restrictions on the carry of arms,

Syracuse, NY, and Nashville, TN. Both open and concealed carry were lawful in

almost all large cities.

The oft quoted language of Heller I regarding presumptively valid

regulations is more harmful than helpful to the State’s position. Florida’s Open

Carry Ban is a novel and new regulation without a valid legal or historical

precedent, not a longstanding regulation of the type referenced in Heller I.

First, Florida’s Open Carry Ban is of more recent vintage than the

regulations at issue in Heller I (1975) or McDonald (1982). Second, nothing in

any case cited by the State or the court below stands for the proposition that a state

may lawfully ban open carry by allowing for concealed carry, whether as a right or

50

a privilege. Third the historical record supports the right to bear arms openly.

Just as in the rest of the country, Open Carry was historically permitted in

Florida. The Florida Supreme Court in 1868, while considering a case involving a

charge of carrying a concealed weapon under the then current statute stated:

The statute under which this indictment was found provides, "thathereafter it shall not be lawful for any person in this State to carryarms of any kind secretly on or about their person, &c.:(sic) Provided,that this law shall not be so construed as to prevent any person fromcarrying arms openly outside of all their clothes." Th. Dig., 498, § 5. .. .

It merely directs how they shall be carried, and prevents individualsfrom carrying concealed weapons of a dangerous and deadlycharacter, on or about the person, for the purpose of committing somemalicious crime, or of taking some undue advantage over anunsuspecting adversary. . .

Sutton v. State, 12 Fla. 135, 136 (Fla. 1868). At that time there was no

requirement for a license to open carry a firearm. Historically the State of Florida

has recognized this fundamental right and allowed the unconcealed, or open, carry

of firearms. The state only had an interest in regulating the concealed carry of

arms due to the risk of provocation by a person being secretly armed. This Court’s

logic in Sutton still holds true. State v. Sellers, 281 So.2d 397 (Fla. 2d DCA

1973). This long recognized right with over one-hundred years of common law

decisional history, has now been abolished by the legislature in exchange for a

privilege to carry concealed firearms. Crane at 267.

51

The entire scheme of licensing the possession of firearms is suspect and

based on racial prejudices, and “Jim Crow” laws. The infamous Dred Scott

decision warned that to allow freed blacks the rights of citizenship, would

necessarily allow freed black men to go about bearing arms wherever they pleased.

Dred Scott v. Sandford, 60 U.S. 393, 417 (1857). After the 14 Amendment, theth

state only enforced the licensing requirement against the freedmen, as

acknowledged by this Court in Watson v. Stone, 4 So. 2d 700 , 702-703 (Fla.

1941).

The concurring opinion went on to point out the real root of Florida’s gun

control laws and recognized the reason their enforcement had only been limited to

minorities was because it was generally recognized as unconstitutional and

therefore could only reasonably be applied against minorities.

. . . the Act was passed for the purpose of disarming the negrolaborers . . . and to give the white citizens in sparsely settled areas abetter feeling of security. The statute was never intended to beapplied to the white population and in practice has never been soapplied. We have no statistics available, but it is a safe guess toassume that more than 80% of the white men living in the ruralsections of Florida have violated this statute. It is also a safe guess tosay that not more than 5% of the men in Florida who own pistols andrepeating rifles have ever applied to the Board of CountyCommissioners for a permit to have the same in their possession andthere had never been, within my knowledge, any effort to enforce theprovisions of this statute as to white people, because it has beengenerally conceded to be in contravention of the Constitution andnon-enforceable if contested.

52

Watson v. Stone, 4 So. 2d at 703 (Buford, J. concurring specially); see also, Sutton

v. State, 327 So. 2d 234 (Fla. 1 DCA 1976)(reversing conviction for possessing ast

concealed weapon in a vehicle on statutory interpretation grounds and citing with

approval, Watson v. Stone) overturned by Ensor v. State, 403 So. 2d 349 (Fla.

1981); Ensor v. State superseded by statute as found in Alexander v. State, 450 So.

2d 1212, 1214 (Fla. 4 DCA 1984). th

The 1893 Act was again considered in 1962. Davis v. State, 146 So. 2d 892

(Fla. 1962). The Davis court held that it was only because a limited class of arms

required a permit that the statute was valid. Id. But Heller I, ruled that singling

out handguns for additional prohibitions is unconstitutional, because they are in

common use. Heller at 2818.

By 1973 the Florida statutes had been amended and re-numbered but the

courts still recognized Sec. 790.01, Fla. Stat., as the current version of the statute

at issue in Watson and Davis. Supra. Sutton, 327 So. 2d 234, 235 (Fla. 1 DCAst

1976). Despite the obvious problems with the vagueness of Sec. 790.01, the

Ensor court upheld a conviction for possession of a concealed firearm. Ensor v.

State, 403 So. 2d 349 (Fla. 1981). As stated by Justice Boyd in his dissent:

I think instead of trying to save the statute by stating our own viewsof what the law should provide we should firmly urge the legislatureto define what acts and circumstances constitute carrying a concealed

53

weapon.

What the public generally knows, courts can notice judicially. Therising increase of violent crimes in which pistols are used shoulddemonstrate the urgent need for laws clearly stating who may carryweapons that are concealed, and under what circumstances, and whatconstitutes concealment.

Ensor, 403 So. 2d at 355 (Justice Boyd, dissenting); see also Dorelus v. State, 747

So. 2d 368, 374 (Fla. 1999)(suggesting that further legislative explanation was

necessary regarding the definition of concealed versus unconcealed firearms in

vehicles). It is important to note that at this time, Florida Statute, Section 790.053,

did not exist, and there was no state law prohibiting the open carrying of firearms.

In 1987 the Legislature created a statewide system of concealed carry

permits, and expressly preempted the field of firearms law. During a special

session later that year 790.053 was enacted. There is little legislative history on

the statute, as the bill did not go through any committee, and was passed as an

emergency measure within days after the bill was filed, with no opportunity for

public comment. Carrying Concealed Weapons in Self Defense: Florida Adopts

Uniform Regulation the Issuance of Concealed Weapons Permits, FSU Law Rev.,

Comment, 15 (1987):751.

Based on the history alone this Court should cautiously consider any request

to uphold a statute, that has either been held unconstitutional, or has been

54

selectively applied to minorities in every prior similar iteration.

IV. The exceptions to the prohibition against open carry contained in Sec.790.25, Fla. Stat., should be treated as an element of the crime of opencarry rather than an affirmative defense based on the supremacyprovision of Sec. 790.25.

Sec. 790.25 is an unusual statute. First, unlike a statute providing for an

affirmative defense to a crime, it clearly states that other statutes do not apply

within the boundaries of Sec. 790.25. Sec. 790.25(2)(a), Fla. Stat. Second, it

declares that its provisions control over any statute in conflict. Sec. 790.25(4), Fla.

Stat. No other statute in Florida has such a broad and sweeping supremacy clause.

Third, its Declaration of Policy and its Construction statements, require an

expansive and liberal reading of the statute in favor of the right to bear arms. Sec.

790.25(1) and (4). The first point mandates the result sought by Mr. Norman,

while the second and third points, should guide this Court in its interpretation of

the first point and determining whether these exceptions are mere affirmative

defenses or elements of the crime of open carry of a firearm.

Sec. 790.25(3) LAWFUL USES, states:

[t]he provisions of ss. 790.053 and 790.06 do not apply in thefollowing instances, and, despite such sections, it is lawful for thefollowing persons to own, possess, and lawfully use firearms andother weapons, ammunition, and supplies for lawful purposes.

This is not an exception contained in a clause subsequent to the enactment clause

55

of the statute. See, Mackey v. State, 83, So.3d 942, 947 (Fla. 3d DCA 2012). This

is an entirely separate statute that by its terms is supreme.

A statute, which by its very terms: supersedes any law in conflict; is to be

liberally construed in favor of the right to bear arms, and which states that another

potentially conflicting statute does not apply in certain situations, cannot be held

to merely provide an affirmative defense. Such a ruling would result in arrests for

lawful conduct. Only by ruling that the provisions of 790.25 are elements of the

crime of violating 790.053 can this Court fulfill the intent of the Legislature and

protect law abiding citizens from arrest.

If the supplemental rights in Sec. 790.25 are affirmative defenses, then a

person completing the mandatory training to “demonstrate[s] competence with a

firearm, Sec. 790.06(2)(h), Fla. Stat., required to obtain the license necessary to

carry a firearm under the current scheme, is subject to arrest for attempting to

comply with that scheme. After being arrested, the person will be denied their

right to obtain the license necessary to exercise their right until the charges are

resolved. As an affirmative defense, the person will have to endure prosecution

until they can present and prove to a judge or jury enough evidence that their

actions were within Sec. 790.25. All of this will cost several thousand dollars just

to vindicate the fundamental right to bear arms and to obtain the license necessary

56

to bear arms in this state.

The same analysis applies to any hunter, any fisherman, any person

improving their skill at a range, and even an off-duty law enforcement officer out

of their jurisdiction is subject to arrest at the unbridled discretion of a police

officer.

The section provides a list of cases where 790.053, the statute at issue here,

has no application. Sec. 790.25(3)(a)-(o), Fla. Stat. Included in this list is

everything from military, police, and security guards, to citizens who are fishing,

camping, hunting, or shooting at a range, or going to or from these activities. Sec.

790.25 Fla. Stat. By the plain language of the statute, Sec. 790.25 is a list of rights

of Floridians, not a list of affirmative defenses, and cannot be subordinate to Sec.

790.053.

This Court has long recognized the Legislative intent behind Sec. 790.25.

This Court has previously held that despite the plain text of Sec. 790.25, the

express intent of the Legislature in the statute, required a holding contrary to the

plain language. Peoples v. State, 287 So. 2d 63 (Fla. 1973). Despite the plain

language of the statute which only allowed for open carry, this Court held that the

statute also allowed for concealed carry.

The State argued below, and the trial court agreed, that the provisions of

57

Sec. 790.25 are merely affirmative defenses to a charge of violation of Open Carry

Ban. In other words, a person traveling to or from the range for target practice

must satisfy a law enforcement officer that he is engaged in one of the protected

exceptions which provide for open carry. If he fails to do so, the officer has the

unbridled discretion to choose whether to arrest the individual or not. This is a

recipe for arbitrary enforcement and harassment.

An affirmative defense is an inadequate protection of a constitutional right.

A statute cannot criminalize speaking against the government as sedition with a

First Amendment affirmative defense. Nor could one criminalize all abortion as

murder with a Right to Privacy affirmative defense. Such statutory schemes

would be struck down because affirmative defense place the burden of proof on

the individual, not the state. In re Winship, 397 U.S. 358, 364 (1970)(“the Due

Process Clause protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.”).

No other constitutionally protected activity requires a defendant to prove

that they were lawfully engaged in the protected activity in order to avoid arrest.

58

CONCLUSION

Mr. Norman’s arrest and prosecution were unconstitutional from beginning

to end. The gunpoint detention of Mr. Norman, a lawfully armed person, clearly

shows that the current interpretation of firearms law is suspect and dangerous.

With no knowledge or indication of where Mr. Norman was going or had been,

two police officers conducted an extremely dangerous detention of Mr. Norman

solely because his firearm was visible.

The open carrying of a firearm was lawful in Florida from its admission as a

state until 1987. Additionally, for the safety of Floridians and visitors, this Court

should hold that the provisions of Sec. 790.25 operate not as affirmative defenses,

but as elements that the state must prove in order to arrest and obtain a conviction

of a person with a visible firearm.

Dale Norman respectfully requests this Court declare Open Carry Ban

unconstitutional to the extent it prohibits open carry and overturn the conviction

below. He requests this court rule that 790.053, is unconstitutional as applied to

those with a CWFL. Alternatively he requests that the Court find that the

provisions of Sec. 790.25 Fla. Stat. are elements the State must prove in order to

convict a person of open carry, and remand this case for new trial with appropriate

jury instructions.

59

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a copy of the foregoing was served via e-service

this _25th___ day of November 2015 to the following:

Office of the State Attorney, Bruce Colton19 Judicial Circuitth

411 South 2nd StreetFort Pierce, FL 34950balsonso@sao19.org

Cynthia Comras, Esq.Criminal Appeals DivisionOffice of the Attorney General1515 N. Flagler Dr., Suite 900West Palm Beach, FL 33401Cynthia.Comras@myfloridalegal.comCrimAppWPB@myfloridalegal.com

CERTIFICATE OF COMPLIANCE

I hereby certify that the typ used in this brief is 14 point proportionallyspaced, Times New Roman.

FLETCHER & PHILLIPS

/s/ Eric J. Friday Eric J. FridayFla. Bar No.: 797901541 E. Monroe St. STE 1Jacksonville FL 32202Phone: 904-353-7733Primary:familylaw@fletcherandphillips.comSecondary:efriday@fletcherandphillips.com